Prop. 7 the Governor-General) to certain provincial Acts, authorizing "her Lieutenant-Governor" to exercise her prerogative right in the use of the Great Seal in and for the province,-"to the extent in which it is necessarily conferred on that high officer by the statute," did expressly delegate to and empower Lieutenant-Governors to exercise certain prerogative rights appropriate to the office of the representative of the Sovereign in the particular province.1 The Lieutenant provinces It is, however, mainly as regards the LieutenantGovernors of Governors of the various provinces that the leading Proposition calls for comment. It is derived from the judgment of the Privy Council in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, a judgment which as Boyd, C., observes, in Re McDowell and the Town of Palmerston, "set at rest many moot points, particularly as to the status of the LieutenMajesty's ant-Governor, declaring him to be the representative of Her Majesty for all purposes of provincial government," which had been the subject, as will shortly be seen, of very various opinions. Are Her representa tives. 1Todd's Parl. Gov. in Brit. Col., 2nd ed., p. 596, citing Can. Sess. Pap., 1877, No. 86, p. 36, where the judgments of the Nova Scotia judges are printed. And see infra p. 114, n. I. 2[1892] A. C. 437. In this case, at p. 441, their lordships, as cited in the notes to Propositions 5 and 6 (supra p. 86), point out that the provisions of the British North America Act "nowhere profess to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces.' 322 O. R. at p. 565, (1892). For a discussion of the position of governors of colonies in relation to the Sovereign, see the opinion of the Attorney-General of South Australia, 12 C.L.T., p. 259, seq. And on the whole subject of the constitutional position of colonial governors, see Todd's Parl. Gov. in Brit. Col., 2nd ed., passim, esp. at p. 34, seq. Reference may also be made to the article on "The Prerogative of the Crown in Colonial Legislation," by Mr. Thomas Hodgins, Q.C., in Rose-Belford's Canadian Monthly, Vol. 5, p. 385, also referred to supra p. 72. 12 The Privy Théberge v. In holding as they did in this case, the Privy Prop. 7 Council were quite consistent with their dictum in Théberge v. Laudry, 1 where Lord Cairns, deliver- Council. ing the judgment of their lordships, speaks of the Quebec Controverted Elections Act of 1875 as "an Act which is assented to on the part of the Crown, and to which the Crown, therefore, is a party; which is cited by Burton, J.A., in Reg. Laudry. v. St. Catharines Milling and Lumber Co. as direct confirmation of the view that LieutenantGovernors do possess the power to act in the name of the Queen. In their judgment in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, above cited, the Privy Council observe :-" It would require very strong language, such as is is not to be found in the Act of 1867, to warrant the inference that the imperial legislature meant to vest in the provinces of Canada the right of exer- of Maritime cising supreme legislative powers in which British Sovereign was to have no share . . . the Act had not committed to the Governor-General the power of appointing and removing LieutenantGovernors, there would have been no room for the argument, which, if pushed to its logical conclusion, would prove that the Governor-General and not the Queen, whose viceroy he is, became the sovereign authority of the province whenever the Act of 1867 came into operation. But the argument ignores the fact that, by section 58, the appointment of a provincial Governor is made by the Governor 12 App. Cas. 102, 2 Cart. 1, (1876). Liquidators Bank v. the Receiver If 22 App. Cas. at p. 108, 2 Cart. at p. 9; see also Clarke v. Union Fire Ins. Co., 10 O. P. R. at p. 316, 3 Čart. at p. 338, (1883). 313 O.A. R. at p. 166, 4 Cart. at p. 207, (1886). 4[1892] A.C. at p. 443. General of Sect. 9 of The executive government of and over Canada continues vested in the Queen. Prop. 7 General by instrument under the Great Seal of Canada,' or, in other words, by the executive B.N.A. Act. government of the Dominion, which is by section 9 expressly declared 'to continue and be vested in the Queen.' There is no constitutional anomaly in an executive officer of the Crown receiving his appointment at the hands of a governing body, who have no powers and no functions except as representatives of the Crown. The act of the GovernorGeneral and his Council in making the appointment is within the meaning of the statute the act of the Crown; and a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for all purposes of Dominion government.", And accordingly they held in this case that whereas in the liquidation of the Maritime Bank of Canada, carrying on business in the City of St. John, New Brunswick, the progovernment vincial government was a simple contract creditor Crown's for a sum of public moneys of the province deposited of priority in the name of the Receiver-General, the claim was for a Crown debt to which the prerogative attached, and the provincial government was entitled to payment in full over other depositors and creditors; in which decision they were affirming the decision of the Supreme Court of Canada, which in its turn Provincial can claim prerogative as creditor. 1Thus Lord Carnarvon would seem to have erred in the view he took in his despatch to Lord Dufferin of January 7th, 1875, cited by Taschereau, J., in Mercer v. Attorney-General of Ontario, 5 S. C. R. at p. 671, 3 Cart. at p. 54, (from Can. Sess. Pap., 1875, Vol. 8, No. 7), where he says of Lieutenant-Governors:-" They do not hold commissions from the Crown, and neither in power nor privilege resemble those Governors, or even Lieutenant-Governors of colonies, to whom, after special consideration of their personal fitness, the Queen, under the Great Seal and her own hand and signet, delegates portions of her prerogatives and issues her own instructions." 220 S. C. R. at p. 695, (1888). affirmed the decision of the Supreme Court of New Prop. 7 Brunswick.1 In thus holding that the Lieutenant-Governors of provinces for the purposes of provincial government were as much representatives of the Queen as the Governor-General himself for purposes of Dominion government, the Privy Council were only stating in Governors the Queen for purposes of provincial government. a convenient general form the conclusion to which Lieutenantthe dicta of many judges in former cases had represent pointed, and a brief consideration of these dicta. will conduce to a fuller understanding of the manner in which provincial Lieutenant-Governors represent the Queen. 3 Per For example, in the opening words of the above passage from the judgment of the Judicial Committee in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, we are reminded of the words of Papineau, J., in Molson v. Chapleau, where he Papineau, J. says:-"It has been properly said that the Queen cannot surrender any of her prerogatives, except by The Queen a law and in express terms. In like manner, and personifies more properly, it may be said that the Queen cannot sovereign cease to be the personification of the sovereign throughout 127 N.B. at p. 379. 2The point had been argued out at great length by Mr. Justice Loranger in his "Letters upon the Interpretation of the Federal Constitution," (first letter), Quebec, 1884, who, amongst other things, at P. 24, points out that by section 59 of the Union Act, 1840, Imp. 3-4 Vict., c. 35, it was enacted that "all powers and authorities expressed in this Act to be given to the governor of the province of Canada shall be exercised by such governor in conformity with and subject to such orders, instructions, and directions as Her Majesty shall from time to time see fit to make or issue," and adds that this is "a provision which is not repealed by the Confederation Act, but is still in force under section 65 of the British North America Act." Sed quære. 36 L.N. at p. 224, 3 Cart. at pp. 365-6, (1883); referred to by Jette, J., in Lambe v. The North British and Mercantile Fire and Life Ins. Co., M. L. R. 1 S. C. at p. 34, 4 Cart. at pp. 91-2. the authority the Empire. Otherwise be gone. Provincial and Prop. 7 authority in any part of the Empire without a law of the imperial parliament, or an agreement in express terms to that effect. For from the moment when it is no longer she who personifies the sovereign authority in every province of the Empire, that province is no longer an integral part of the link of that Empire. Now, if the Queen has withdrawn, by union would the federal compact, both from the legislature and the executive of the provinces, and if the LieutenantGovernors are not her representatives, and do not exercise in her name and in her stead the authority which they exercise, these provinces are no longer integral parts of the Empire. The powers granted to the provincial legislatures are granted to them to the exclusion of the federal parliament. It is the legislatures same with the executive power. A certain number governments of these powers are rights of sovereignty, which can sovereign only be exercised by the Sovereign or by her representatives in her name. Such are legislation over property and civil rights, the administration of justice, the constitution of the Courts, as well civil as criminal, etc. Either the Lieutenant-Governors and legislators act in their own name (then they are independent of Her Majesty), or they do so in the name of Her Majesty, and then they are her represenof them by tatives. If it is right to say that Her Majesty in person does not form part of the provincial legislatures and provincial governments, it is equally right to say that she forms part of them by representation. For she cannot cease to form part of them, personally or by representation,without ceasing to be Sovereign Otherwise of those provinces. The representative of the exercise powers. The Queen forms part representa tion. she would not be Sovereign of the provinces. Sovereign cannot be brought before the Courts any more than she herself can, except when and as she allows. It is not by inadvertence that the law directs the Lieutenant-Governor to choose the |